Dumer v. St. Michael's Hospital

Robert W. Hansen, J.

(dissenting). Where a doctor fails to diagnose German- measles in a pregnant patient and the child is born with a birth defect, is the doctor liable for malpractice to (1) the child, or (2) its parents for failing to inform such patient that she was pregnant and that there was an increased possibility that the child she was carrying might be born with a birth defect due to her having German measles? The claim is that the *777 doctor’s failure to diagnose deprived the pregnant patient of the opportunity to terminate the pregnancy.

The doctor is not liable in an action brought on behalf of the child, the majority holds, because the damages claimed cannot be measured by any standards recognized by our law. In so holding, the majority cites, quotes and follows a New Jersey case, 1 the New Jersey court rejecting recovery by such child where a doctor had diagnosed the German measles but allegedly failed to inform the patient that her child could be defective because of such German measles. The New Jersey court held:

“. . . The infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination. This Court cannot weigh the value of life with impairments against the nonexistence of life itself. By asserting that he should not have been born, the infant plaintiff makes it logically impossible for a court to measure bis alleged damages because of the impossibility of making the comparison required by compensatory remedies. . . ,” 2

The majority states: “We agree with the New Jersey court.” So does this writer. However, where the majority goes exactly halfway around the track with the New Jersey court, the writer would go all the way. For the New Jersey court also upheld demurrer to the cause of action of the parents, which our court majority refuses to do. Rejecting the claim of injury by the parents, the New Jersey court held that such cause also involved no damages cognizable by law, stating:

“. . . In order to determine their [the parents’] compensatory damages a court would have to evaluate the denial to them of the intangible, unmeasurable, and complex human benefits of motherhood and fatherhood and *778 weigh these against the alleged emotional and money injuries. Such a proposed weighing is similar to that which we have found impossible to perform for the infant plaintiff. When the parents say their child should not have been born, they make it impossible for a court to measure their damages in being the mother and father of a defective child.” 3

The writer would follow the reasoning and rationale of the New Jersey court as to the immeasurability of damages both in the action brought on behalf of the child and the action, brought by its parents. But more than measurability of damages is involved. The parents’ cause of action is based on the claimed denial of their opportunity to terminate the life of their child while he was an embryo. Public policy is involved, exactly as the New Jersey court, in Gleitman, said:

“. . . Even under our assumption that an abortion could have been obtained without making its participants liable to criminal sanctions, substantial policy reasons prevent this Court from allowing tort damages for the denial of the opportunity to take an embryonic life.

“It is basic to the human condition to seek life and hold on to it however heavily burdened. If Jeffrey could have been asked as to whether his life should be snuffed out before his full term of gestation could run its course, our felt intuition of human nature tells us he would almost surely choose life with defects against no life *779 at all. ‘For the living there is hope, but for the dead there is none.’ Theocritus. . . .

“The right to life is inalienable in our society. A court cannot say what defects should prevent an embryo from being allowed life such that denial of the opportunity to terminate the existence of a defective child in embryo can support a cause for action. Examples of famous persons who have had great achievement despite physical defects come readily to mind, and many of us can think of examples close to home. A child need not be perfect to have a worthwhile life.” 4

It is difficult to seé how this conceptual approach of the New Jersey court as to the right to choose life on the part of the child born can be accepted as to cause of the action of the child and not accepted as to the cause of action of its parents. This is particularly true in this state, where a parents’ cause of action for injuries sustained by a child has been held to be derivative from the cause of action of the child, 5 our court reasoning that “. . . since the parent takes by operation of law a part of the child’s cause of action, he must take it as the child leaves it and that is subject to any defenses which might be urged against the child ‘in whom the whole cause of action, but for the law, would vest.’ ” 6

What the New Jersey court, in the Gleitman Case, said of the public policy considerations that require denial of the cause of action of the parents, here as there, squares with the recent holding of this court denying recovery to parents where a doctor had failed to determine the fact of pregnancy and the parents’ claim was that they would have, somehow and somewhere, secured an abortion if they had been timely informed *780 of the fact of pregnancy. 7 There this court listed five public policy considerations for denial of recovery on grounds of public policy, 8 and “. . . [a]ny one of these public policy considerations could be sufficient to deny recoverability.” 9 The writer finds more than one of the listed five considerations as here applicable to the allegations of this complaint, including (1) the injury is too wholly out of proportion to the culpability of the doctor who missed the German measles diagnosis; (2) allowance of recovery would place too unreasonable a burden upon family physicians; (3) allowance of recovery would be too likely to open the way for fraudulent claims; and (4) allowance of recovery here enters a field that has no sensible stopping point. As to the public policy considerations involved, the suggestion that Bieck applies only and is to be limited to cases where a child is normal but unwanted must be rejected. Quite apart from the fact that it smacks too much of a Hitlerian “elimination of the unfit” approach, the fact is that the public policy considerations applied in Rieck and Gleitman go to the consequences of an allowance of recovery and go far beyond the matter of measurability or even amount of damages claimed in a particular denial-of-opportunity~to-abort case.

*781 Additionally, it is to be noted that in the complaint in Rieck the parents expressly alleged that, if they had been advised of the mother’s pregnancy, they would have without hesitation sought and obtained an abortion of the unwanted child. In the case before us, nowhere in the complaint do the parents allege what they would have done in the event that they had been advised of the mother’s pregnancy and of the increased possibility of a child being born with birth defects due to the German measles during the pregnancy. Nowhere in the complaint is there an affirmative allegation that the parents here would have obtained an abortion if told about the pregnancy and the German measles. Thus, in the case before us, the “. . . unbroken sequence of events establishing cause-in-fact . . .” required by Rieck for proximate causation, 10 is not present. Even had such proximate cause been alleged, in Rieck our court held that to permit recovery “. . . would open the way for fraudulent claims and would enter a field that has no sensible or just stopping point.” 11 That door to fraudulent claims is as wide open here where a child was born with birth defects as it was, in Rieck, where the child was born, normal but nonetheless unwanted.

Adding only that the requirement of alleging in the complaint an unbroken sequence of events (establishing a direct and complete chain of causation) was not here met, the writer would follow the reasoning and concur in the result reached by the New Jersey Supreme Court which concluded, in Gleitman, as to the parents’ claim of cause of action:

“Though we sympathize with the unfortunate situation in which these parents find themselves, we firmly believe the right of their child to live is greater than and precludes their right not to endure emotional and financial injury. We hold therefore that the second and third *782 counts [the parents’ claim of cause of action] of the complaint are not actionable because the conduct complained of, even if true, does not give rise to damages cognizable at law; and even if such alleged damages were cognizable, a claim for them would be precluded by the countervailing public policy supporting the preciousness of human life.” 12

Thus agreeing with the reasoning and concurring the result reached by the New Jersey court in the case cited, quoted and in part followed by the majority, the writer would affirm the judgment entered by the trial court in this case, both as to the cause of action on behalf of the child and as to the cause of action brought by the child’s parents.

Gleitman v. Cosgrove (1967), 49 N. J. 22, 227 Atl. 2d 689.

Id. at page 28.

Id. at pages 29, 30. See also: Stewart v. Long Island College Hospital (1968), 58 Misc. 2d 432 , 296 N. Y. Supp. 2d 41, judgment modified (1970), 35 App. Div. 2d 531, 313 N. Y. Supp. 2d 502, affirmed as modified (1972), 30 N. Y. 2d 695, 332 N. Y. Supp. 2d 640, 283 N. E. 2d 616 , the New York court holding: “. . . there is no remedy for having been born under a handicap, whether physical or psychological, when the alternative to being born in a handicapped condition is not to have been bom at all. To put it another way, a plaintiff has no remedy against a defendant whose offense is that he failed to consign the plaintiff to oblivion. Such a cause of action is alien to our system of jurisprudence.” ( 58 Misc. 2d at page 436 .)

Id. at page 30.

Callies v. Reliance Laundry Co. (1925), 188 Wis. 376 , 206 N. W. 198 .

Schwartz v. Milwaukee (1972), 54 Wis. 2d 286, 290 , 195 N. W. 2d 480 , summarizing the earlier Callies holding.

Rieck v. Medical Protective Co. (1974), 64 Wis. 2d 514 , 219 N. W. 2d 242 .

Id. at pages 517, 518, this court holding: “Even where the chain of causation is complete and direct, recovery may sometimes be denied on grounds of public policy because: (1) The injury is too remote from the negligence; or (2) the injury is too wholly out of proportion to the culpability of the negligent tort-feasor; or (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; or (4) because allowance of recovery would place too unreasonable a burden (in the case before us, upon physicians and obstetricians); or (5) because allowance of recovery would be too likely to open the way for fraudulent claims; or (6) allowance of recovery would enter a field that has no sensible or just stopping point. . . .”

Id. at page 518.

Id. at page 517.

Id. at page 519.

Gleitman v. Cosgrove, supra, footnote 1, at page 31.